The High Court said it would refuse an application by a property owner, referred to in the judgment as Mr Morgan, for leave to bring environmental proceedings against Crumb Rubber Ireland Limited while the company is in liquidation. The court left the matter open pending an affidavit from the liquidator confirming information about the company’s insurance.
Mr Morgan seeks to bring proceedings under sections 57 and/or 58 of the Waste Management Act 1996 over waste at lands in Mooretown, Dromiskin, County Louth. He claims the property was contaminated and posed an environmental hazard when it was returned to him in June 2017. The proposed action seeks remedial measures and costs, among other relief. Those claims have not been decided in this motion.
Justice Brian O’Moore considered whether to grant leave under section 678 of the Companies Act 2014. Crumb argued that the mandatory works sought were unsuitable against a company in liquidation, that it had no funds or relevant insurance, and that a 2017 deed of surrender released it from liability. Mr Morgan disputed those points, including the deed’s effect and whether insurance might respond.
The judge found that the deed was not a basis to refuse leave at this stage: its meaning and effect could not be clearly resolved on the motion. But he accepted that mandatory orders requiring Crumb to carry out remediation might be inappropriate in light of the limits on a liquidator’s role. He also concluded, on the evidence before him, that Crumb had no assets or responsive insurance to meet an award or carry out the works. The estimated remediation costs were about €900,000, according to a letter of claim cited in the judgment.
The court considered whether allowing the case against Crumb to proceed was necessary to protect Mr Morgan’s claims against other respondents, including former directors and Laois County Council. It found no demonstrated prejudice: the other claims could continue, and relevant company documents could be sought through non-party discovery. The judgment also noted uncertainty in the law on so-called fallback orders against directors where a company cannot comply.
Justice O’Moore said the application should be refused, citing the absence of assets or insurance and the lack of useful purpose in proceeding against Crumb. However, he directed that the liquidator swear and serve, within one week, an affidavit confirming the insurance information relied on by the court. If he did not, the judge said he would reconsider his view. The matter was listed for 10am on 28 July 2020 to finalise matters. The judgment does not record a final order refusing leave.